Fighting Corporate Rule

Most of these versions are modifications to language that has been proposed in Congress. We feel these better address the issues of importance (see the amendment language issues page) than what has been currently proposed in Congress (see amendment language versions page).

1. Our current preferred version

We the People Eugene has given extensive thought as to how an amendment to the Constitution could be maximally effective at promoting political equality while minimally impacting free speech concerns. We target inequality rather than corruption. While in theory both are distinct, in practice reducing inequality reduces the potential for corruption. Also see David Strauss – “Corruption, Equality, and Campaign Finance Reform”

Our consideration has been shaped by Supreme Court opinions – one can hardly presume to fix legal theory without familiarity with the source. The problem can be traced to Buckley v. Valeo, where the court decided that mitigating inequality cannot justify reducing speech. So any amendment must be centered on that ruling. The most precise language we have come up with is:

“Congress and the States may enact legislation narrowly tailored to mitigate disparities of influence upon government caused by wealth.”

If an amendment could only be one sentence, that might be enough. But it’s useful to be more directive on a couple issues:

First, what kind of disparities are we talking about? Some people are reduced to gathering cans and bottles for pennies – must all politically active people be limited to a tiny expenditure? We believe that limits should not be set so low. People have a variety of modes of influence (canvassing, writing op-eds, lobbying, etc); as long as contributions cannot dwarf those other modes they serve a useful function for people who lack the time for such activities. Also, political spending serves a public purpose by expanding the ideas available to politicians and to the public. We have concluded that limiting a person’s aggregate political spending to the average income in this country is appropriate – it restrains the grossly disproportionate sums now being spent by wealthy individuals, while only a tiny sliver of politically active people need ever worry about running into such a limit.

Second, how should corporations be treated? The court’s Citizens United opinion has been widely derided, and deservedly so – shouldn’t an amendment spell out the proper role of corporations regarding political influence? We believe it should, and that it can. Before Citizens United the court’s doctrine on that question could be summed up by the Massachusetts Citizens For Life ruling in 1986. The court’s opinion in that case drew a distinction between artificial entities created for an ideological purpose and entities created for other purposes. We believe this distinction was correct. Artificial legal entities are tools of human endeavor, and their spending should be seen as proxies of human spending. Political spending by entities created for a non-political purpose may misrepresent the intentions of owners/shareholders/members/donors, so they should be banned from such spending. But people should be seen as having a right to create entities for a political or ideological purpose.

So because an amendment may be more than one sentence, we suggest the following language:

“Section 1. Associations, corporations, and other artificial entities may not use resources to influence government policy, directly or indirectly, except for people assembled purposely to exert such influence, or as permitted by exceptions created by law; exceptions shall not extend to influencing candidate or ballot measure elections, or contributing to entities whose purpose is influencing government policy.

Expenditures for other purposes shall not be affected by this section; entities such as media corporations may make expenditures intended to pursue profit if that profit does not depend on affecting governmental decisions.

Congress and the States may enforce this section through appropriate legislation.

Section 2. It is inherently disproportionate for one person’s yearly political spending to exceed the average yearly income in this country; Congress and the States may enact legislation narrowly tailored to mitigate disparities of influence on government or governmental decisions caused by wealth.”

Of course there are other democratic values under threat; these values could be strengthened by constitutional language:

Section 3. Congress and the States may take appropriate actions to guarantee the dependence of elected officials on the people alone, including requiring the disclosure of contributions and expenditures made to influence government or governmental decisions, the establishment of systems of public financing for elections, and the imposition of content neutral limitations on electoral contributions.

Section 4. The right of adult citizens of the United States to vote in any primary or other election shall not be denied or abridged by the United States or any State. The costs of any requirement placed on a citizen in order to vote shall be borne by the government imposing the requirement, and that government must insure that all qualified citizens may meet the requirement without disproportionate burden.

Section 5. Each state shall strive to draw congressional and legislative district boundaries so that partisan representation in the legislature approximates the proportion of votes cast by party.

2. A modification of the Udall/Conyers version introduced and considered in 2015

Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonablenarrowly tailored limits on the raising and spending of money by candidates and others to influence electionsgovernment.

Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence electionsthe spending of money to influence government by such entities if they were created for any other purpose.

Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the pressbusiness press to pursue profit if that profit does not depend on affecting government.

3. A modification of MTA

Section 1[Artificial Entities Such as Corporations Do Not Have Constitutional Rights]

The rights protected by the Constitution of the United States are the rights of natural persons only.

Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution, and are subject to regulation by the People, through Federal, State, or local law, unless such regulations violate the rights of natural persons.

The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.

Section 2 [Money is not free speech]

Federal, State, and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, to ensure that all citizens, regardless of their economic status, have access to the political process, and that no person gains, as a result of their money, substantially more access or ability to influence in any way the election of any candidate for public office or any ballot measure.

Artificial entities may not use resources to influence government policy, except for natural persons assembled to exert such influence, or as permitted by law; permission shall not extend to influencing candidate or ballot measure elections, or contributing to entities whose purpose is influencing government policy.

Federal, State and local government shall require that any permissible contributions and expenditures be publicly disclosed.

The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.

4. A modified version of Deutch/Sanders 2013 version

SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established under the laws of any state, the United States, or any foreign state for business purposes or to promote business interests.

SECTION 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the people’s right of freedom of the press.

SECTION 3. Such corporate and other private entities, or unions using member dues, shall be prohibited from making contributions or expenditures, directly or indirectly, in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

SECTION 4. Such corporate and other private entities shall be prohibited from making any contributions or expenditures, directly or indirectly, to affect government policy except in compliance with regulations Congress or the states may establish.

SECTION 5. Congress, the States, and local governments shall advance the fundamental principle of political equality for all by regulating and setting limits on all contributions and expenditures, including a candidate’s own spending, in any election of any candidate for public office or the vote upon any ballot measure submitted to the people, and shall authorize the establishment of political committees to receive, spend, and publicly disclose the sources of authorized contributions and expenditures.

5. A modified version of McGovern’s proposals

Section 1. Congress shall regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on–

(1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and

(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.

Section 2. States and local governments shall regulate the raising and spending of money and in-kind equivalents with respect to State and local elections, including through setting limits on–

(1) the amount of contributions to

a) candidates for nomination for election to or for election to, State or local office; and

b) contributions to state or local referenda and state or local ballot initiatives; and

(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates, referenda, and ballot initiatives.

Section 3. For-profit corporations, limited liability companies, or other private entities established under the laws of any state, the United States, or any foreign state for business purposes or to promote business interests, or unions using their member dues, shall be prohibited from making contributions or expenditures, directly or indirectly, in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

SECTION 4. Such corporate and other private entities shall be prohibited from making any contributions or expenditures, directly or indirectly, to affect government policy except in compliance with regulations Congress may establish.

Section 5. Congress shall have power to implement and enforce this article by appropriate legislation.

H.J. Res. 21 (not modified)

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected State and Federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are unalienable.